Whether a state can prosecute after a federal case is decided mostly by state double jeopardy laws, not by the U.S. Constitution, which allows it. In a friend-of-the-court filing in late 2018, a Texas-led coalition of states reported that 35 states restrict, in some way, a second case over a crime another sovereign has already adjudicated; for 13, the restriction covers only particular named offenses. That survey is now about eight years old and was not re-checked state by state for this article, so treat it as a map, not a statute book. Nothing here assesses any person’s legal exposure.
Where it stands: The constitutional baseline was reaffirmed on June 17, 2019 in Gamble v. United States. Since the 2018 survey, New York has added a pardon-specific exception (2019). Alaska’s bar had already been repealed in 2008, according to the Alaska Legislature’s statute listing, as covered in our article Can a pardon stop state charges?
What does the Constitution allow?
It allows both governments to prosecute. Under the dual sovereignty doctrine, the national government and each state are separate lawmakers, so an offense against one is not the same offense as one against the other.
In Gamble, the Court put it directly: “a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.” The ruling runs both ways; it equally permits a federal case after a state one.
A federal pardon does not change the analysis. The Constitution Annotated says “state criminal offenses and federal or state civil claims are not covered” by the president’s power. So when a person is pardoned federally, any obstacle to a state case comes from the state’s own code. Our pardon tracker lists the federal grants.
How many state double jeopardy laws limit a second prosecution?
Most states have some limit, though the counts vary by source. Justice Ruth Bader Ginsburg, dissenting in Gamble, wrote: “And more than half the States forbid successive prosecutions for all or some” offenses already resolved on the merits by another court. She cited, among others, the Texas-led brief.
That brief, filed to defend dual sovereignty, gave the more precise figure. “Thirty-five States have some type of statutory” constraint, it said. “Of these, thirteen states have restrictions for specifically enumerated crimes.” It added: “Many of those restrictions concern prior prosecutions related to the Uniform Controlled Substances Act or other drug crimes.”
The brief’s own point was that variety is a reason to leave the matter to legislatures. “The States have taken a wide variety of approaches,” the states wrote.
Which approaches do states use?
At least six distinct models appear in the brief’s footnotes. The examples below are the states the brief cited for each; other states may fit, and statutes may have changed.
| Approach | States cited in the 2018 brief |
|---|---|
| Bar a second case unless the statutes require proof of different facts | Arkansas, Colorado, Delaware, Georgia, Hawaii, Illinois, Kansas, Kentucky, New York, Pennsylvania, Wisconsin |
| Allow a second case only if the laws target “separate evils” | Hawaii (example given) |
| Allow either of the above, or if the second offense was not complete when the first trial began | New Jersey |
| Bar only if the two statutes’ elements are identical | Minnesota |
| Bar only after a prior federal case, with a terrorism exception | Virginia |
| Extend the bar to foreign judgments if the defendant was punished | Washington |
| Bar limited to listed crimes, mostly drug offenses | 13 states, including Iowa, Michigan and others named in the brief |
The language behind the table is technical. Some states bar a second “prosecution unless the statutory elements require different facts to be proved.” One state allows a case “or if the second offense was not consummated when the former trial began.” Another “prohibits prosecution only when there was a prior federal prosecution, with an exception for terrorism charges,” citing Virginia’s code. Michigan’s entry shows the variety: among its enumerated-crime limits the brief cites both a drug provision and a theft provision, Mich. Comp. Laws § 767.64.
The federal government has its own limit, by policy rather than statute. The brief describes a long-standing Justice Department policy, which Ginsburg’s dissent calls the Petite policy, that allows a federal case after a state one “only when there are compelling reasons to do so” and the prosecutor obtains prior approval from senior officials.
Is California on the list?
Sources disagree, so treat California as unsettled. The Texas-led brief cites “Cal. Penal Code §§ 656,” and § 793 among the 35. Just Security, in a 2017 analysis by Jed Shugerman, wrote that “Some states have similar statutes (although it seems California does not),” comparing them to New York’s.
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The two may be measuring different things: a statute that limits some successive cases is not the same as one as broad as New York’s. Anyone relying on California law would need the current code and case law, not either summary.
Why do these laws often matter less after a pardon than expected?
Because most of them turn on an earlier prosecution, and a pardon can come before any prosecution starts.
Just Security noted that under federal constitutional law, “jeopardy attaches once a jury is sworn in (or for a bench trial, when the judge swears in the first witness).” It cautioned that “states may interpret their statutes applicability differently.” When a pardon arrives before charges or trial, a state bar keyed to a prior prosecution may not be triggered at all. That is a general reading, and each state’s wording controls.
Steve Bannon’s case shows the pattern. AP reported that Manhattan District Attorney Alvin Bragg “charged Bannon with state offenses after Trump cut a federal prosecution short with a pardon in the final hours of his first term in 2021.” Bannon, who called the case political persecution, later pleaded guilty to a state charge; our Bannon explainer covers it.
New York went further after the survey. Its 2019 law, signed as Chapter 374, “Authorizes prosecution where a person receives a presidential reprieve, pardon or other form of clemency when certain conditions are met.” The state’s attorney general called it “the thirteenth exception” to its double jeopardy statute. Details are in our CPL 40.51 guide.
Frequently Asked Questions
Can a state prosecute you after a federal case for the same crime?
Under the U.S. Constitution, yes. Gamble v. United States (2019) held again that a federal case for the same conduct does not stop a later state case under state law. Many states limit this through their own statutes.
How many states have double jeopardy laws that go beyond the Constitution?
The Texas-led amicus filing of 2018 put the number at 35, with 13 of those confined to specific offenses, often involving drugs. Justice Ginsburg wrote that more than half the states have such limits. The count has not been updated in our sources.
Does a federal pardon stop state charges?
No. The clemency power reaches federal crimes alone. Whether a state can bring charges afterward depends on state law, including any state double jeopardy statute and when federal jeopardy attached.
Does California bar prosecution after a federal case?
Sources disagree. The 2018 Texas-led brief lists California Penal Code sections 656 and 793, while a 2017 Just Security analysis said California does not appear to have a statute like New York. Current California law should be checked directly.
Did Alaska repeal its double jeopardy statute?
The Alaska Legislature statute listing shows the provision barring prosecution after a conviction or acquittal elsewhere, AS 12.20.010, as repealed in 2008.
Sources
- Gamble v. United States, No. 17-646 — Supreme Court of the United States, June 17, 2019
- Brief for Texas et al. as Amici Curiae in Support of Respondent, Gamble v. United States (No. 17-646) — Supreme Court of the United States (docket), November 2018
- The States Can Trump Trump’s Pardons — Just Security (Jed Shugerman), September 5, 2017
- ArtII.S2.C1.3.1 Overview of Pardon Power (Constitution Annotated) — Congressional Research Service, via LII, accessed October 2026
- Bill S04572 (2019-2020) — New York State Assembly, signed October 16, 2019
- Attorney General James Applauds Signing Of Double Jeopardy Law — Office of the New York State Attorney General, October 16, 2019
- Trump ally Steve Bannon pleads guilty and avoids jail time in border wall fraud case — KAXE (Associated Press), February 11, 2025
This article is news reporting and analysis based on the public sources listed above, as they stood on the dates shown. Where officials, lawmakers or analysts disagree, including on whether an action is lawful, their positions are attributed to them; Donald Trump Class Action is not a court and nothing here is legal advice. Facts in a developing story can change.